ALMA MATER STUDIORUM UNIVERSITÀ DI BOLOGNA LGBT Families and EU Policies on Freedom and Justice Matteo Bonini Baraldi

LGBT Families in Europe2 Ackowledgement  ILGA-Europe has kindly supported the first phase of this reasearch  Work is still in progress  Presentation both informative and speculative 5 February 2008

EU and discrimination: a decade of changing law  1997: Treaty of Amsterdam – Article 13  2000: Employment Equality Directive: it covers 0,5 MM people, 4 M km2  2007: Fundamental Rights Agency  2007: Lisbon (Reform) Treaty  : Community Action Programme  : Progress LGBT Families in Europe3 5 February 2008

Very recent develpments  Opinion of AG in the Maruko case (ECJ)  E.B. v. France decision (ECHR)  Addressing discrimination in family matters, however, remains still problematic in the EU LGBT Families in Europe4 5 February 2008 Why?

Preamble of EU Charter of Fundamental Rights LGBT Families in Europe5 ‘Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.’ 5 February 2008

The individual at the heart of EU activities  Individual needs and life stories:  Two girls wishing to appoint each other as guardians  The employee who gets married abroad and asks for honeymoon holidays  The EU citizen wishing to sponsor his partner of third country nationality and to obtain a Schengen visa  The two men who address their wish to be fathers through surrogate motherhood… LGBT Families in Europe6 5 February 2008

Changing European societies  Increased circulation of: people lifestyles family structures work arrangements legal formants LGBT Families in Europe7 5 February 2008

8 EC’s Press Release – 28 March 2006  “Following a partner, being with family and having a better quality of life are the main factors that motivate Europeans to move to another country”  PIONEUR project finds that 30% of Europeans move because of their partner or family “Migrant lovers”

The EU Hague Programme LGBT Families in Europe9 5 February 2008 Two general objectives Freedom Justice

Freedom 1.set of measures on immigration and asylum 2.Directive on free movement of EU citizens (2004/38/EC) LGBT Families in Europe10 5 February 2008

-Problem: approach limited to the Reed requirements -Unmarried (and registered) partners only recognised if cohabitation is already recognised in the country of destination 5 February 2008 LGBT Families in Europe11

12 Is there discrimination on grounds of nationality?  An Italian/Canadian same-sex couple wishing to move to the Netherlands as a couple must rely on to be treated in the same way as Dutch nationals the Italian partner’s Community right this right implies a voluntary choice of the NL with respect to its own nationals

A reductionist approach: possible reasons  Council and Commission indicate two problems: 1.Diversity of national legislations and reverse discrimination 2.Limited Community competences LGBT Families in Europe13 5 February 2008

Epiphanies of a reductionist approach LGBT Families in Europe14 5 February 2008 whether they are registered partners or unmarried partners, the Council is of the opinion that recognition of such situations must be based exclusively on the legislation of the host Member State To confer rights which are not recognised for its own nationals on couples from other Member States could in fact create reverse discrimination, which must be avoided (Common Position of 10 November 2003, Council document 13263/03, p. 8) Recognition for purposes of residence of non-married couples in accordance with the legislation of other Member States could pose problems for the host Member State if its family law does not recognise this possibility.

COM (2000)303 final, art February 2008 LGBT Families in Europe15 “the provision on unmarried partners is applicable only in Member States where unmarried couples are treated for legal purposes in the same way as married couples. This provision generates no actual harmonisation of national rules on the recognition of unmarried couples...” “it merely allows the principle of equal treatment to operate”

Compare some basic principles of EC law 1.Free movement of people can only be limited in exceptional cases: public policy, public health and security, which presuppose an effective and serious threat to a fundamental interest of the community 5 February 2008 LGBT Families in Europe16

17 Free movement and ‘obstacles’ 2.No unjustified obstacles to free movement Gebhard:  justified by imperative requirements in the general interest  suitable for the objective pursued  proportionate

3.MS must respect other MS’s choices when it comes to:  citizenship (Micheletti, Chen)  surnames (Garcia Avello) 5 February 2008 LGBT Families in Europe18 Crucial state interests which fall outside Community competences

Garcia Avello  A MS cannot limit the effects of attribution of citizenship of another MS, by requiring an additional condition for the recognition of citizenship for the purposes of the exercise of fundamental freedoms foreseen by the Treaty (para 28) 5 February 2008 LGBT Families in Europe19

Why not for family status?  Why not?  Is it really only a problem of competences? 5 February 2008 LGBT Families in Europe20

Main problem  Lack of consensus on whether same-sex couples enjoy a right to respect for family life  Binary system of protection of human rights in Europe: ECHR/ECJ  What will the legislature do? 5 February 2008 LGBT Families in Europe21

22 Multi-level constitutionalism Will national competences be stronger than European fundamental rights? Will European doubts and cautious views be stronger than the bold choices of some Member States?

 Matters: separation, divorce, marriage anulment, parental responsibility maintenance property regimes successions and wills 5 February 2008 LGBT Families in Europe23 Justice in the Hague Programme

Positive developments in the EU  Some (proposed) measures do or will apply to non-matrimonial partnerships (e.g. maintenance proposal, green book on property regimes)  Some do support the role of private autonomy (e.g. successions) 5 February 2008 LGBT Families in Europe24

25 National law, National fragmentation  Private international law is national law  An expression of national interests and views  Clear divide between p.i.l. choices of countries that have adopted substantive laws on registered partnerships, and countries that have not  What choices are being made by the pi.l. systems of European countries?

26 The use of the public policy exception  As a result of the national character of p.i.l., some countries might be keen to use their public policy exception  This is what happened, confusedly, in Italy with the Dutch same-sex marriage case  How and to what extent can public policy be anchored to a common European standard?

Concepts of marriage and ‘European public policy’  marriage can always be (easily and inexpensively) dissolved  marriage is for life and can never be dissolved  that marriage is between persons of different sex only 5 February 2008 LGBT Families in Europe27

MS vs. EU  MS: attachment to local ‘good old values’  EU did not embrace the ‘portability of personal status’ principle 5 February 2008 LGBT Families in Europe28 not only a problem for individual rights, but for the mission of EC law

 ‘mutual distrust’ will undermine supremacy of EC law, and will cause discrimination of individuals concerned  Compare several decisions in the field of goods and services: 5 February 2008 LGBT Families in Europe29 No need to comply with regulation in two markets!

No interferece with purely internal situations but…  Community can require member state B not to re-examine the existence of a family arrangement foreseen by member state A and penetrated together with the migrating citizen Mere application of the prohibition of double regulation principle a minimum shared vision 5 February 2008 LGBT Families in Europe30

‘Portability’ vs ‘Competition’  When no personal status is available  Compare Centros 5 February 2008 LGBT Families in Europe31 It is perfectly legitimate for EU companies to shop around for the best possible law What about the two Italians who married in NL?

32 The Europe of today…and that of tomorrow  Making sure that legal institutions are: Accessible Portable Lacking uniformity, by stimulating competition among MS

Recommendations  Discrimination on grounds of sexual orientation must be avoided as much as possible  Freedom: definitions of ‘family member’ must be adapted  Justice: same-sex marriages and registered partnerships should be included  Lex loci actus factor should be preferred 5 February 2008 LGBT Families in Europe33

Thank You! 5 February 2008 LGBT Families in Europe34